The courts are not authorized to examine the record of conviction where a given statute (or subdivision of a statute) contains only one set of elements, because then the statute is not divisible.[206]  If it is not possible to determine, applying the categorical analysis, whether the nondivisible statute or subdivision triggers removal, the court can go no further.[207]   To do so would mean going beyond the elements of the statute into the facts of the case.  The court must instead apply the minimum conduct analysis to determine whether the full range of conduct punished under the statute falls within the ground of removal.[208]  If not, the conviction does not trigger removal. 

 

                For example, California Penal Code § 245(a) formerly prohibited assault with a deadly weapon, which was defined to include a range of different weapons, some firearms, some not.  In looking at the essential elements of the crime, as defined by statute, it was not possible to say that the minimum conduct necessary to constitute this offense involves a firearm, since it was perfectly possible to violate it by committing all the elements with a knife or baseball bat.  Under a proper analysis, which considers only the categorical analysis of the elements of the offense, a court cannot consider this a divisible statute, since it defines only one offense, even though the offense may be committed by a number of different means.[209]

 

The courts have considered the record of conviction, which includes the indictment, plea, verdict and sentence, only where the statute is divisible, for the purpose of determining under which section or clause of the statute the conviction occurred. (See U. S. ex rel. Zaffarano v. Corsi, supra; U. S. ex rel. Valenti v. Karnuth, 1 F.Supp. 370 (N. D. N. Y., 1932); U. S. ex rel. Guarino v. Uhl, supra.)[210]

 

The categorical analysis does not consider the facts of the case.  Whether a gun or knife was used constitutes one of the facts of the case, rather than an essential element of the offense.  Therefore, a court should not look at the record of conviction under these circumstances to determine the facts of the offense which are not necessary to convict, since they are irrelevant to the categorical analysis.

 

Some courts incorrectly conclude that a statute without subdivisions, and without any disjunctive elements, is “divisible” merely because the single set of elements required to convict embraces both some acts which do, and other acts which do not, trigger removal.  These cases hold that when such a statute has been violated, it is permissible to look to the record of conviction to determine the specific act committed.[211]  This is improper.  The record of conviction cannot add additional elements to the statute that are not in the offense as defined by the Legislature, and the court is precluded from examining facts of the case not necessary to convict, i.e., non-elements, even if they are included in the record of conviction.[212]  See § 16.18, infra.

 

                In some cases, a state statute may contain subdivisions or disjunctive language, but still will not be “divisible” for immigration purposes, because (regardless of the subdivisions) each offense described within the statute clearly falls (or does not fall) within the ground of removal.[213]

 

                Despite this, courts sometimes improperly proceed to examine the record of conviction in making a divisible statute analysis when it is not necessary or permissible to do so.  Two recent cases from the Third and Ninth Circuits are illustrative of this tendency: 

 

                In Stubbs v. Ashcroft,[214] the Third Circuit found that a conviction for child endangerment[215] could not be an aggravated felony sexual abuse of a minor offense.  In doing so, the court correctly noted that the statute included two sets of offenses – causing a child harm on the one hand, and engaging in sexual conduct which would cause a child harm. 

 

The court found that the BIA was correct in engaging in divisible statute analysis, but then found that the first set of elements could never be sexual abuse of a minor because the minimum conduct did not involve sex, and the second set of elements could never constitute sexual abuse of a minor because, applying the minimum conduct analysis, the offense could be committed without the child’s participation in any sexual act.  In other words, although the statute contained two sets of elements, under neither set did the full range of conduct involve sexual abuse of a minor as defined for purposes of the aggravated felony definition (regardless of what was contained in the record of conviction). 

 

                The court erred in its analysis because it should have first determined whether either of the sets of elements could be categorically found to fall within the aggravated felony sexual abuse of a minor definition.  Upon determining the answer was “no,” it should have stopped, without ever looking to the record of conviction.

 

                In Cisneros-Perez v. Gonzales,[216] the Ninth Circuit found that a conviction under California Penal Code § 242, simple battery, could not be found to be a domestic violence offense.[217][218]  In order to do so, however, it improperly examined the record of conviction. 

 

California Penal Code § 242 only has one set of elements – “the willful and unlawful use of force or violence upon the person of another.”[219]  The Ninth Circuit had already held that to qualify as a crime of “domestic” violence, the fact that the victim was domestically related to the defendant must be an element of the crime of conviction.[220]  Therefore, the analysis should have ended upon demonstration that the full range of conduct punishable under Penal Code § 242 does not categorically involve a domestic relationship.

 

The Ninth Circuit’s examination of the record of conviction was arguably justified in this case because the government arguments that dismissed counts and domestic violence counseling ordered by the sentencing judge could be used as evidence from which to infer a domestic relationship.  While the court may have properly felt it needed to reject those arguments, it could have done so by noting that not even a statement in the charge or a factual basis for the plea that proved a domestic relationship would be sufficient, since the statute of conviction simply does not require a domestic relationship to convict.

[206] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).  Cf. Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (“Sexual communication with a minor is inherently wrong and contrary to the accepted rules of morality and the duties owed between persons. The full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude. Therefore, without proceeding to the modified categorical approach, we conclude that Morales has been convicted of a crime involving moral turpitude . . . .”).

[207] Likewise, where all the possible acts punishable by the statute trigger removal under the ground at issue, there is no need to examine the record of conviction.  See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 n.7 (9th Cir. Dec. 27, 2005) (“Because the Washington statute is not ‘facially overinclusive,’ that is, because it does not criminalize, as a felony, conduct that is not a ‘violent felony’ under the [Armed Career Criminal Act], we need not address whether [the offense] is a ‘violent felony’ under the modified categorical approach.”); Sutherland v. Reno, 228 F.3d 171, 177 n.5 (2d Cir. 2000) (rejecting petitioner’s argument that BIA was required to look to record of conviction, since court determined that all offenses under the statute of conviction were crimes of violence); Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA 2001) (although statute contained discrete subsections, convictions under all subsections were equally grounds for deportation).

[208] See § 16.8, supra.

[209] Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (if the statute defining the offense of conviction encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of offenses that are and those that are not crimes involving moral turpitude, and the record of conviction establishes conviction of a subsection defining a deportable offense).

[210] Matter of R, 2 I. & N. Dec. 819, 826-827 (BIA 1947).

[211] See, e.g., Matter of C, 5 I. & N. Dec. 65 (BIA 1953) (Oregon conviction of contributing to the delinquency of a minor held a CMT under a statute broad enough to include acts which did and acts which did not involve moral turpitude, where record of conviction merely stated that the respondent was convicted of the crime of contributing to the delinquency of a minor, but an examination of the information filed against him clearly showed the commission of certain lewd and lascivious acts which involved moral turpitude).

[212] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).

[213] See, e.g., Matter of Martinez-Recinos, 23 I. & N. Dec. 175, 117 (BIA Oct. 15, 2001) (“Although we agree with the respondent that the statute contains several parts, we find that each of the offenses enumerated in section 118(a) of the California Penal Code constitutes perjury as defined in 18 U.S.C. § 1621, and, thus, is an aggravated felony.  Because all of the parts of the California statute encompass the aggravated felony crime of perjury as defined by the federal statute, we need not look further to the record of conviction.”).

[214] Stubbs v. Ashcroft, 452 F.3d 251 (3d Cir. Jun. 29, 2006).

[215] N.J. Stat. Ann. § 2C:24-4(a).

[216] Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006).

[217] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[218] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).  See § § 22.9-22.32, infra.

[219] California law has determined that the term “force or violence” is a term of art, meaning only a “harmful or offensive touching.”  People v. Page, 123 Cal.App. 4th 1466, 1473 n.1 (2004).

[220] Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th Cir. Jun. 10, 2004) (“Here, it is undisputed by the government that the pertinent, victim-related testimony Tokatly offered during the second hearing in support of his application for ancillary relief from removal-”even if taken as a true account” of the underlying conduct that gave rise to his prior conviction-was not included in the “elements to which [he] pled guilty.”)  There was no indication in Tokatly that the domestic relationship was somehow an “extra element” that could be examined independently of the elements of the crime of conviction.  See § 16.7, supra.

First Circuit

CONVICTION " NATURE OF CONVICTION -- CATEGORICAL ANALYSIS " DIVISIBILITY " INCONCLUSIVE RECORD " MINIMUM CONDUCT
Villanueva v. Holder, 784 F.3d 51, 54 (1st Cir. Apr. 24, 2015) (If those documents are inconclusive, then we must discard the modified categorical approach and determine whether all of the alternative means of committing the predicate crime fit within the federal definition of the generic offense.).

Fourth Circuit

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS MAY NOT BE APPLIED TO INDIVISIBLE COMMON LAW OFFENSE
United States v. Montes-Flores, 736 F.3d 357 (4th Cir. Nov. 26, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature (the unlawful act of violent injury to another accompanied by circumstances of aggravation), was not categorically a crime of violence within the meaning of the residual clause of USSG 2L1.2(b)(1)(A)(ii) (2012) (any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another); the district court erroneously applied the modified categorical approach to this offense, which was an indivisible common law crime, because this offense can be committed with or without force"and even when force is involved, it can be committed in a violent or nonviolent manner); applying Descamps v. United States, 133 S.Ct. 2276 (June 20, 2013); see United States v. Hemingway, 734 F.3d 323, 330 (4th Cir. Oct. 31, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature, was not categorically a crime of violence under the ACCAs residual clause). Note: While Descamps held open the question whether its analysis applies to common law crimes, as opposed to crimes defined by statute, this decision does apply the categorical analysis to common law offenses. We agree with our sister circuits that, when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition. Id. at 367 (internal quotations mark and citations omitted).

CATEGORICAL ANALYIS " DIVISIBLE STATUTE ANALYSIS " FIREARMS OFFENSES
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (in federal conviction for possession of ammunition by an ex-felon, in violation of 18 U.S.C. 922(g)(1), defendant has burden of establishing as affirmative defense that bullets in question were designed exclusively for use in antique firearms).

Fifth Circuit

AGGRAVATED FELONY " FIREARMS " FRAUDLENT PURCHASE OF FIREARMS FOR EXPORT
Franco-Casasola v. Holder, __ F.3d __ (5th Cir. Oct. 23, 2014) (federal conviction for violation of 18 U.S.C. 554(a), fraudulent purchase of firearms for export, is a divisible statute, as a target offense where the indictment must specify, and the prosecutor must prove, the underlying offense; record established aggravated felony firearms trafficking offense since the indictment specified a firearms trafficking offense).

DIVISIBLE STATUTE ANALYSIS - NON-ELEMENTS IN CHARGING DOCUMENT DO NOT ALLOW COURT TO EXAMINE RECORD OF CONVICTION WHERE STATUTE IS NOT DIVISIBLE
United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (court may not look to language in charge, that defendant committed burglary "willfully and unlawfully" to determine whether the California burglary conviction fits within they Taylor generic definition of burglary where an "unlawful" entry into the building is not an element of the crime of conviction; because the California burglary statute is not divisible, there was no need to look to the record of conviction), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007).

Eighth Circuit

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
United States v. Tucker, 740 F.3d 1177 (8th Cir. Jan. 29, 2014) (under the Supreme Courts decision in Descamps, the court may not apply the modified categorical approach to a statute that is textually indivisible, such as the Missouri statute penalizing a walk-away escape from a half-way house, to hold the offense to be a crime of violence under the residual otherwise clause of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii), because there was a guard on duty when the escape occurred); partially overruling United States v. Parks, 620 F.3d 911 (8th Cir. 2010) (holding that a walk-away escape from a halfway house was a crime of violence under the Career Offender Guideline, applying the modified categorical approach to determine that Parkss escape offense posed a substantial risk of physical injury to another, because there was a guard on duty at the entrance of the halfway house when Parks walked away, even though the Missouri statute did not make this an element of the offense).

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
United States v. Tucker, 740 F.3d 1177 (8th Cir. Jan. 29, 2014) (under the Supreme Courts decision in Descamps, the court may not apply the modified categorical approach to a statute that is textually indivisible, such as the Missouri statute penalizing a walk-away escape from a half-way house, to hold the offense to be a crime of violence under the residual otherwise clause of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii), because there was a guard on duty when the escape occurred); partially overruling United States v. Parks, 620 F.3d 911 (8th Cir. 2010) (holding that a walk-away escape from a halfway house was a crime of violence under the Career Offender Guideline, applying the modified categorical approach to determine that Parkss escape offense posed a substantial risk of physical injury to another, because there was a guard on duty at the entrance of the halfway house when Parks walked away, even though the Missouri statute did not make this an element of the offense).

Ninth Circuit

CATEGORICAL ANALYSIS " DIVISIBILITY " BURDEN " DEPUBLISHED DECISION
Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), holding that a noncitizen cannot meet burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, is not irreconcilable with Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), or Descamps v. United States, 133 S.Ct. 2276 (2013), and so remains good law), will be re-heard en banc. The prior decision shall not be cited as precedent.

CATEGORICAL ANALYSIS " DIVISIBILITY " BURDEN " DEPUBLISHED DECISION
Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), holding that a noncitizen cannot meet burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, is not irreconcilable with Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), or Descamps v. United States, 133 S.Ct. 2276 (2013), and so remains good law), will be re-heard en banc. The prior decision shall not be cited as precedent.

CONVICTION -- NATURE OF CONVICTION " DIVISIBILITY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is not a divisible statute, since the jury is not required to find the exact nature of the sexual activity portrayed, so no resort may be had to the modified categorical analysis to determine whether the conviction qualified as a child pornography aggravated felony, under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I)).

CRIMES OF MORAL TURPITUDE " UNAUTHORIZED DRIVING A VEHICLE " NOT A DIVISIBLE STATUTE
Almanza-Arenas v. Holder, ___ F.3d ___ (9th Cir. Nov. 10, 2014) (California conviction of violating Vehicle Code 10851(a), a statute that criminalizes both conduct that would constitute a crime of moral turpitude " taking a vehicle with intent permanently to deprive the owner, and conduct that does not amount to a crime of moral turpitude " intent temporarily to deprive the owner " is not a divisible statute, because it creates a minimum intent of at least temporarily depriving the owner of the property, rather than different offenses with different elements as to which the jury must unanimously agree; the immigration authorities may not apply the modified categorical analysis or consider the record of conviction, even in the context of inadmissibility and eligibility to apply for non-LPR cancellation of removal where the respondent bears the burden of proof).

CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " INDIVISIBLE STATUTE
United States v. Cabrera-Gutierrez, ___ F.3d ___, 2014 WL 998173 (9th Cir. Mar. 17, 2014), withdrawing and superseding previous opinion on grant of panel rehearing (Oregon conviction of sexual abuse in the second degree, in violation of Or.Rev.Stat. 163.425, does not trigger a sentence for a federal conviction for failing to register under the Sex Offender Registration and Notification Act, 18 U.S.C. 2250, as a Tier III sex offender, because the Oregon statute is not divisible: The statute states a single, indivisible set of elements, and the modified categorical approach does not apply. Descamps, 133 S.Ct. at 2282; see also Acosta"Chavez, 727 F.3d at 909 (holding that where the state statute's age element is broader than the federal definition and is not divisible ... we may not apply the modified categorical approach).

CRIMES OF MORAL TURPITUDE " MODIFIED CATEGORICAL ANALYSIS
Saavedra-Figueroa v. Holder, 625 F.3d 621, 627-28 (9th Cir. Nov. 5, 2010) (Regardless of whether we may apply this approach in this case in light of our holding that misdemeanor false imprisonment lacks an element of the generic crime-see Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc)-the application of the modified categorical approach would make no difference. Although Saavedra-Figueroa admitted both section 236 misdemeanor convictions, there is no record evidence of the factual allegations underlying his second conviction. Accordingly, we cannot determine that the second conviction was based on a judicial determination of facts that fall within the federal generic definition of a CIMT. See Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).); citing Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007).

NATURE OF OFFENSE - MODIFIED CATEGORICAL ANALYSIS - COURT CANNOT GO OUTSIDE THE ELEMENTS OF THE OFFENSE OF CONVICTION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (in evaluating the nature of the offense of conviction under the modified categorical analysis for removal purposes, the court cannot go outside the elements of the offense of conviction).

CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS NOT APPLIED WHERE NO RECORD OF CONVICTION
Blanco v. Mukasey, 518 F.3d 714 (9th Cir. Mar. 3, 2008) ("Because the record here does not include any of the documents that would allow us to conduct a modified categorical analysis, we employ only the categorical approach. See United States v. Vidal, 504 F.3d 1072, 1086 (9th Cir.2007) (en banc) (noting that when conducting a modified categorical analysis, the court's review is "limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge") (internal quotation marks omitted).").

CONVICTION - NATURE OF CONVICTION - MODIFIED CATEGORICAL ANALYSIS - WHERE STATUTE OF CONVICTION LACKS AN ELEMENT OF THE GROUND OF DEPORTATION, THERE IS NO OCCASION TO APPLY THE MODIFIED CATEGORICAL ANALYSIS
Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) ("Where the statute of conviction is categorically broader than the generic definition of a crime involving moral turpitude, this Court employs the "modified categorical" approach. Navarro-Lopez, 503 F.3d at 1073. However, the "modified categorical" approach only applies when the particular elements in the statute of conviction are broader than the generic crime. Id. When the statute of conviction is missing an element of the generic crime altogether, we cannot hold that "a jury was actually required to find all the elements" of the generic crime. Id. The crime of failing to register, like the accessory crime at issue in Navarro-Lopez, lacks an element of the generic crime: the requisite baseness or depravity. Therefore, there is no reason to apply the "modified categorical" approach in this case.").

NATURE OF CONVICTION - MODIFIED CATEGORICAL ANALYSIS
Jordison v. Keisler, 501 F.3d 1134 (9th Cir. Sept. 4, 2007, amended Oct. 30, 2007) (where the offense of conviction is not a crime of violence under the categorical approach, the government acknowledges it has supplied the complete record of conviction, and such record is inadequate to prove that the defendant committed a crime of violence under the modified categorical approach, it is not necessary to remand the matter to allow BIA to determine whether defendant committed a crime of violence under the modified categorical analysis).

CATEGORICAL ANALYSIS -- MINIMUM CONDUCT TEST - IF THE FULL RANGE OF CONDUCT FORBIDDEN BY THE STATUTE DOES NOT FALL WITHIN THE GROUND OF DEPORTATION, THE CONVICTION DOES NOT TRIGGER DEPORTATION
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because the full range of conduct forbidden by the harassment portion of the statute does not constitute a crime of violence since "some stalking crimes [those committed at a distance by telephone or mail] include no substantial risk of violence").

Other

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " JURY UNANIMITY REQUIREMENT
United States v. Mathis, 136 S.Ct. 894 (2016),granting certiorari in 786 F.3d 1068 (8th Cir. 2015)